Kilakila `o Haleakala, the group that is opposed to the construction of the Advanced Technology Solar Telescope (ATST) near the summit of Haleakala, was dealt a setback when the Intermediate Court of Appeals, in a ruling issued June 9, upheld a lower court decision regarding the environmental documentation prepared for the University of Hawai`i’s management of the Haleakala observatory area.
Kilakila had argued that the management plan necessitated preparation of a full environmental impact statement, pursuant to Chapter 343 of Hawai`i Revised Statutes – the Hawai`i Environmental Protection Act. The University of Hawai`i at Manoa, which manages the 18-acre site, had prepared only an environmental assessment and, on that basis, had determined in November 2010 that there would be no significant environmental impact related to the management plan per se. The EA did acknowledge that individual projects undertaken in the context of the plan might have such consequences, but for such projects, separate documents complying with Chapter 343 would be required. One such project was the ATST, for which the university had prepared an EIS in roughly the same time frame as the management plan.
The state Board of Land and Natural Resources approved the management plan on December 1, 2010. Later that month, Kilakila, which had earlier challenged the management plan EA in 1st Circuit Court, amended its complaint. Attorneys David Kimo Frankel and Camille Kalama with the Native Hawaiian Legal Corporation, representing Kilakila, now asked that the court not only find that the university violated Chapter 343, but also that it:
- Require the university to prepare a full-blown EIS for the management plan;
- Find that the university improperly accepted the plan’s final EA;
- Declare that the management plan would in fact have a significant impact;
- Declare that the management plan itself is null and void; and
- Declare that all permits granted pursuant to the management plan, notably including the Conservation District Use Permit (CDUP) for the ATST, are also null and void.
At the same time, Kilakila was challenging the Land Board’s refusal to grant it a contested case hearing before it issued a CDUP for the telescope’s construction. Although the board appointed a hearing officer a few weeks later, and the contested case was held later that summer, it refused to prohibit the university from proceeding with work on the telescope pending the contested-case outcome. Kilakila eventually prevailed in that case, with the Hawai`i Supreme Court ruling last December that the Land Board erred in its action to award a final CDUP before even deciding whether a contested-case hearing should be conducted.
(Following the contested-case hearing in 2011, the Land Board voted once more on the CDUP application for the telescope. As before, on November 9, 2012, the board approved the permit. Once again, Kilakila appealed the decision. With a lower court upholding the board’s action, the case is now before the Intermediate Court of Appeals. In June, the ICA denied Kilakila’s request for an injunction while the appeal is pending.)
In the case that the ICA decided on June 9, Kilakila had argued that the university failed to consider secondary and cumulative impacts resulting from the management plan. It also appealed the lower court’s ruling that limited Kilakila’s ability to obtain through discovery documents held by the university in association with the preparation of the management plan and the telescope EIS. (Many of those documents were obtained, however, through filing of a document request pursuant to the state’s Uniform Information Practices Act. For more on this, see the article in the April 2012 Environment Hawai`i, “Abercrombie, Inouye Offices Accused of Interfering with Hearing on Telescope.”)
On the matter of limited discovery, the ICA deferred to the lower court. Expanding the record before the court by including university documents was not required, the judges stated. “Whether the Management Plan’s EA and its Negative Declaration complied with HRS Chapter 343 is a question of law that does not require factual determinations beyond the administrative record,” they found.
As to the management plan itself, the appeals judges wrote: “Much of Kilakila’s challenge of the Management Plan’s Final EA is founded not on the contention the Management Plan will likely have a significant impact on the environment, but is instead founded on the contention the Telescope Project [i.e., the ATST] has a significant impact on the environment.” But, they go on to write, that project “had both a final EIS and supplemental cultural impact statement.”
After quoting long passages from the management plan, the judges concluded: “This record does not show that the University failed to follow the proper procedures … when it made the Negative Declaration for the Management Plan. As such, the circuit court did not err by granting summary judgment in favor of the university.”
(Last December, the ATST was renamed the Daniel K. Inouye Solar Telescope.)
Groups Appeal Ruling
On Thirty-Meter Telescope
On June 3, the six parties who challenged the award of a Conservation District Use Permit for construction of the Thirty-Meter Telescope on Mauna Kea filed notice of their intent to appeal a lower court ruling in the case to the Intermediate Court of Appeals.
Judge Greg K. Nakamura of the 3rd Circuit Court issued his final ruling in the administrative appeal of the Land Board’s award of the CDUP. Nakamura upheld the board’s decision.
The parties appealing the decision are Mauna Kea Ainana Hou, led by Kealoha Pisciotta; Clarence Kukauakahi Ching; the Flores-Case `ohana; Deborah Ward; Paul K. Neves; and KAHEA: The Hawaiian-Environmental Alliance.
Attorney Richard Naiwieha Wurdeman, representing the petitioners, had not filed a brief with the ICA by press time. However, Nakamura’s order lists – and dismisses – the points the petitioners raised in their original appeal of the Land Board’s award of the CDUP.
Wurdeman had argued at the outset that the December Supreme Court decision, which faulted the Land Board for issuing a CDUP before the contested-case hearing, applied to the TMT permit as well. Namakura found otherwise.
In contrast to the Kilakila case, Namakura wrote, “after preliminarily granting the CDUP, the BLNR immediately ordered that a contested case hearing be held, stayed the permit, and only entered its final decision and order after the contested case hearing had been concluded.”
The petitioners also argued that, as Nakamura characterized it, “the use of Conservation District land for astronomy facilities inherently violates the eight criteria” that the Department of Land and Natural Resources’ administrative rules set forth for permitted uses in that district. Yet another part of the same rule, he continued, “makes clear that astronomy facilities under an approved management plan are appropriate in the Resource subzone, which is where the project is to be located. Accordingly, the Court finds that Appellants’ premise that use of Conservation District Land for astronomy facilities inherently violates [DLNR rules] lacks merit.”
Nor was Nakamura going to second-guess the Land Board’s determination that the TMT project satisfied the eight criteria in the rules. “Appellants have challenged the BLNR’s findings on the eight criteria as being clearly erroneous…. [T]he Court finds that the BLNR’s findings are amply supported by the reliable, probative, and substantial evidence, and are not clearly erroneous; the Court further finds that Appellants’ challenges to the BLNR’s [Findings of Fact and Conclusions of Law] with respect to the eight criteria are unfounded and that reversal of the Decision and Order under the standards set forth [by DLNR rule] is not warranted.”
The petitioners claimed that their expertise in cultural practices of Hawaiians was disregarded and that therefore the permit should be denied. Here is Nakamura’s take on that: “In the contested case hearing, at Appellants’ request, the parties stipulated that Appellants Neves, Ching, Flores, Case, and Pisciotta would be recognized as expert witnesses on their cultural practices regarding Mauna Kea. Appellants now argue that this stipulation somehow resulted in their providing insufficient evidence of traditional and customary native Hawaiian cultural practices.” After reviewing the record, Nakamura wrote, “the Court finds that Appellants were afforded the full opportunity to provide their written direct testimonies prior to the stipulation, and were also afforded an opportunity to provide oral summaries of their testimonies after the stipulation. Appellants also appear to argue that it was assumed, based on the stipulation, that certain expert opinion testimony would be deemed conclusive. However, clearly, the presentation of expert opinion testimony is not conclusive; as with any testimony, the factfinder may accept or reject it…. The Court, therefore, rejects Appellants’ arguments.”
Hanabusa Fails in Challenge
Of Waimanalo Gulch EIS
The final environmental impact statement prepared for the expansion of Waimanalo Gulch landfill has once again withstood a court challenge from U.S. Rep. Colleen Hanabusa.
Hanabusa, who has a residence in the Ko Olina development makai of the landfill, has long objected to the operation of the landfill, which is the only facility permitted to receive municipal solid waste in the City and County of Honolulu. The landfill also takes in ash from the nearby HPOWER waste-to-energy plant, which burns most of the solid waste collected by county garbage trucks.
In late 2008, Hanabusa – at the time a state senator representing O`ahu’s leeward coast – filed a complaint in 1st Circuit Court that claimed that the EIS prepared in connection with an application for the Special Use Permit needed for the city to expand the landfill by 92.5 acres was deficient in several key respects. Judge Rom Trader found in the city’s favor in April 2010, and Hanabusa appealed.
On May 30, the Intermediate Court of Appeals upheld the lower court ruling. Among other things, Hanabusa had argued that the final EIS had not been prepared “in good faith” because the scope of the project it described differed from the project described in the SUP application. As the appellate court noted, “Hanabusa claims that the Final EIS only addressed the impacts of a 92.5 acre expansion … and therefore could not be used to support SUP-2, which encompassed the use of the entire 200-acre property for landfill operations.”
However, the ICA went on to note, “Hanabusa had fair notice that the [county’s Department of Environmental Services] was preparing the Final EIS to support the use of the entire 200-acre property.”
The public was given ample notice, the ICA said, that the project for which approval was sought was an expansion of the landfill and its continued use beyond May 1, 2008. “Both the Draft and Final EIS … refer to the area of the site as 200 acres… In addition, both the Draft and Final EIS are replete with references to the entire 200-acre property and landfill operations relevant to the entire property, not just the proposed 92.5-acre expansion.”
Hanabusa alone didn’t get that message, apparently. “Comments received in response to the EIS preparation notice and draft EIS provide further proof of the general understanding that the proposed action encompassed the entire property,” the ICA noted. “Viewed in context, we conclude that the Final EIS, and the other materials published by the DES during the EIS review process, adequately disclosed that the proposed project … encompassed landfill operations on the entire 200-acre property.”
As to Hanabusa’s argument that the EIS was inadequate in several important respects, the ICA dismissed those as well. “The Final EIS was thorough and comprehensive, consisting of three volumes and over 1,900 pages,” the ICA wrote. It adequately discussed alternatives and described the setting and potential impacts, the court found. Other arguments she made concerning past landfill operations, impacts to Ko Olina, landfill stability, and the like, were dismissed with the statement that Hanabusa “does not provide significant details or argument with respect to these claims, or cite legal authority that persuades us.”
The EIS, the ICA concluded, was indeed sufficient and, quoting Judge Trader’s decision, “was compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives.”
Federal Appeals Panel
Hears `Aina Le`a Arguments
Seven current and former Land Use Commission members will have to wait a while longer to learn whether they’re individually liable for damages incurred by the developer and landowner of the Villages of `Aina Le`a project in Puako, Hawai`i.
In 2011, those commissioners killed – at least temporarily – the nascent development when they voted to revert about 1,060 acres there from the Urban District to the Agricultural District because the developer, DW `Aina Le`a, had failed to meet the LUC’s deadline to build affordable housing.
On behalf of the LUC, deputy attorney general William Wynhoff has argued that the commissioners are entitled to immunity because they were acting in their official, quasi-judicial capacity, not as individuals. Attorney Bruce Voss, representing landowner Bridge `Aina Le`a, has countered that the commissioners were not only acting as judges, they were also enacting legislation and enforcing it, and, therefore, were not entitled to immunity.
On June 10, after hearing arguments from Voss and Wynhoff, the 9th U.S. Circuit Court of Appeals quickly decided to postpone deliberations until the Hawai`i Supreme Court decides on the broader appeal of the LUC decision by Bridge and DW `Aina Le`a.
Wynhoff called it a $30 million case, referring to the ballpark amount mentioned by Bridge and DWAL, but the actual damages, if any, won’t be decided at least until the Hawai`i Supreme Court rules on whether the LUC erred in its decision.
The Hawai`i Supreme Court was scheduled to hear oral arguments in that case late last month and, given its recent activity, is expected to issue a decision within about six months.
During the hearing before the federal appeals court, one of the judges asked Voss why the reversion wasn’t simply a bad decision by the LUC (perhaps covered by immunity statutes), rather than a legislative act.
Voss suggested that different standards apply when an agency takes on multiple roles.
In any case, U.S. Circuit Judge William Fletcher concluded, “We can’t decide whether there is a taking until we know what the state [Supreme Court] is going to do.”
He, at least, seemed to think the Bridge was likely to prevail.
“As I read the [3rd Circuit Court] decision, you guys were right ten ways from Sunday. If you don’t win, I’ll be astounded,” Fletcher told Voss.
Among other things, 3rd Circuit Judge Elizabeth Strance ruled in 2012 that the LUC had failed to win the six votes necessary for a reversion and that the reversion violated state law because it did not comply with the Hawai`i General Plan.
The state appealed her decision in both state and federal court, but U.S. District Judge Susan Oki Mollway chose to wait until the state case concluded.
In the meantime, Wynhoff said, one and perhaps even two individual commissioners have lost out on loans as a result of the pending litigation.
(For background on this case, read “State Supreme Court, Federal Appeals Court Schedule Hearings Over `Aina Le`a Disputes,” in our June 2014 issue.)
Pflueger Loses Again
James Pflueger does not give up without a long fight. It took more than a decade for the state to win a Hawai`i Supreme Court decision regarding a $4 million fine against him for reef damages at Pila`a, Kaua`i. And a related case involving his neighbors in the area has only recently been resolved – that is, unless he decides to appeal, again, to the state Supreme Court.
Last month, the Intermediate Court of Appeals rejected Pflueger’s “meritless” appeal of a 5th Circuit Court order requiring him to grant kuleana landowners Richard, Amy, and Nicholas Marvin a perpetual easement to their property.
The case stems from a 2001 mudslide. Previous court actions determined that Pflueger’s company, Pila`a 400, LLC, had caused the slide, which smothered the Marvins’ home and fouled the reef in Pila`a Bay. The Marvins sued for damages as well as an injunction against Pflueger, who had begun obstructing access to their home with fences, machinery and vehicles.
The Fifth Circuit Court ruled in the Marvins’ favor in 2007 and required Pflueger to grant the family an easement through his property. The ICA supported that decision and so did the Supreme Court.
But when presented with an easement document in 2012, Pflueger refused to sign it. The Marvins then sued to force him to and also sought per diem fines and attorneys’ fees. The circuit court again found in their favor, with the judge stating that there was no question in her mind that the relief the Marvins were seeking was “fully warranted with the final decision by the [Hawai`i] Supreme Court.”
Undeterred, Pflueger appealed the court’s decision to the ICA last year, arguing, among other things, that the ICA and the Supreme Court decisions in the initial suit did not address the merits of the case.
To this, the ICA stated in its June 10 decision granting the Marvins’ motion for a writ of assistance and execution that Pflueger’s contention that the Hawai`i Supreme Court failed to affirm the Circuit Court’s 2007 order was baseless.
What’s more, “Pflueger essentially asks this court to review a decision of the Hawai`i Supreme Court. … This, we cannot do,” the ICA wrote.